Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1887-11-03

of that fourth amendment, which declares
that no State shall deprive any person of
IIrE IIRERTY nR pRnpERTN

every person charged with the crime in
State shall be entitled to trial by an i'm
partial Jury, and shall not ha compelled to
testify against himself Objections are
in brief, lst, That a statue Of the State as
construed by the Court deprived the
petitioners of a trial by an impartial
jury, and I'd, That Spies was
compelled to give evidence against
blmself Before considering whether the
constitution of the United States has the
effect which is claimed, it is proper TO in
quire whether the federal questions relied
on have in fact arisen. The fact OF this
record is that one statute, to which Objec-
tion is made, was approved March II,
1874, and has been in force since July l of
that year. The complaint is that the trial
court, acting under this statute and in ac-
cordance with its requirements, compelled
petitioners against their will to submit to
trial by q jury that was not impartial
and thus deprived them of one of the
fundamental rights which they had as
citizens OF the United States under the
national constitution, and if the sentence
of the court is carried into execution, they
will he deprived of their lives without
due process OF law.
''In HOpt Va. Utah, 100 U. S. l39, it
was decided by this court that when a
challenge by defendant in criminal
action to 4 juror for
EIAS, ACTUAL OR IMPLIED,
is diSallowed, and the juror is thereupon
pcremptOrily challenged by the defendant
and excused, and an impartial and cOmpe.
tent Juror is obtained in his place, no in
Jury is done the defendant, if until the
jury is completed he has other peremptOry
challenges which he can use, and so in
! Hayes vs.. Missouri, 120 u. s. II, it was
said the right to challenge is the right to
reject, not to select a Juror. Ii from those
who remain an impartial jury is obtained,
the constitutional right OF the accused is
maintained. OF the correctness Of these
rulings we entertain no doubt
| We are therefore confined in this
case to the rulings on the challenges to
! Jurors who actually sat at the trial. OF
these there were but two, and the other
Jenker the third juror who was sworn and
] II. l. Sanford, the last who was called and
sworn after all peremptOry challenges OF
the defendants had hcen exhausted at the
| trial The court construed the statute TO
mean that although juror called as n
juryman may have formed an opinion
based upon rumor or upon newspaper
statements, but if he has expressed no
opinion rs to the truth Of the newspaper
statement he is still qualified as juror.
If he states that he can fairly and Impair
TALLY render . verdict thereon in accord
auce with the law and the evidence and
the court shall be satisfied OF the truth Of
such statement 1t is not test question
whether a Juror will have the opinion
which he has formed from newspapers,
changed by the evidence, but whether mis-
verdict will he based only upon the account
which may here be given by witnesses I'M
der oath Interpreted in this way the stat
ute is not materially different from that OF
the Territory of Utah, which we had under
consideration in Hopt VS.. Utah, supra, and
10 which we then gave effect, as that was a
| Territorial statute, passed by Territorial
Legislature for the government OF 2 Terri
tory over which the United States had eX
elusive jurisdiction. 1t came directly with
| in the operation of article of the amend
mentJ which guaranteed TO HOpt trial Ivy
an impartial jury. Webster vs.. Reed, II
! Howard, 4SI-0J. NO one AT tlat Illne
SUGGESTED A DOUBT
of the consiitutionality OF the statute, and
1t was regarded both in the Territorial
courts and this rs furnishing the proper
rule 10 he observed by territorial court in
empanelliIg an important jury in terri
torial case. A similar statute was enacted
in New York May 5, 1872 (Acts of ls72
! 8 V. -; 9 n. Y. State at large, 2d edition
| 3T3): in Michigan April l3, 1873, (Acts Of
! lS73, l62 Act III. Howell vs.. State OF
! Michigan OE 1854, and also in Nebraska
| Camp State Neb. 1855, 63S3, Criminal
| Code of lOS } The cOnstitutOnality of the
statute of New York was sustained by the
Court of Appeals Of that State in Stokes
vs.. People t53 y. Y. 164 to l72l, decided
! 10, 1879, and it has been acted upon
without objection ever since SO far
as we have been able To discover, no doubt
has ever been entertained in Michigan OF
/ Nebraska of the COnstitutiOnality Ot the
Statutes of these States respectively, but
they have always been etted by their
Supreme Court as valid, both under the
Constitution of the United States and under
that OF the State. (StevenS vs.. the PeO-
pie, - Michigan, 1i9 to 1l5; Ulrlch, VS..
the People, 80 Michigan 2i5; Murphy vs..
the State, - Nebraska 3S3). Indeed the
rule of the statute of Illinois rs it was
construed by the trial court is not mater
tally different from that which has been
adopted by the Courts in many Of the
States without legislative action. Com
mOnwealths vs.. Webster, 5 Gushing 295;
Holt vs. the People, l3 Michigan 22i;
State rs. Fox, Butcher 566; 0rlander vs..
the Commonwealth, Louisi. 100, State VS.
Ellington, : Weddrll 81 Smith vs.. Evans,
3 Seam 81. See also an elaborate note to
this last case in 30 Am. Dec, 52l, where
a very large number of authorities ON this
subject are cited.
Without pursuing this subject further it
is sufficient to say that we agree entirely
with the Supreme Court of Illinois in the
opinion that the statute on its face as con-
strued by trial court is not repuguant to
section 9 of article of the Constitution OF
that State, which guarantees to the accused
party in every criminal prosecution a
speedy trial by
AN IMPARTIAL JURY
of the county or district in which the
otfense is alleged to have been committed.
As this is substantially the provisions of
the Constitution of tine United States on
which petitions now rely, it follows that
even if their position as to the operation
and effect of that constitution is correct,
the statute is not open TO the objection
which is made against it.
eve proceed then to a consideration of
the grounds of challenge to the jurors
Denker and Sanford, to see if by the actual
administration of the rule of the statute
by the Court of the rights of defendants
under the Constitution of the United
States were in any way impaired"
The Court then gives extracts from the
examination OF Denker by the defense,
and says that he was challenged for cause
by the defendants. but before any decision
was made thereon he was questioned by
the Court, and the Courts examination is
appended. The Court, it continues,
"thereupsn overrnled the challenge, but